24. Testimony, Michael J. Matheson, Principal Deputy Legal Adviser, before the Subcommittee on Immigration and Claims, Committee on the Judiciary, House of Representatives, regarding war crimes (June 12, 1996)

PREPARED STATEMENT OF MICHAEL J. MATHESON

PRINCIPAL DEPUTY LEGAL ADVISER, DEPARTMENT OF STATE

Mr. Chairman, I am pleased to participate today in this hearing on H.R. 2587, entitled the "War Crimes Act of 1995.' H.R. 2587 would serve important goals: to help deter war crimes against U.S. persons, and to ensure that the United States is able to comply fully with its international law obligations with respect to the prosecution of war crimes. The Administration fully supports these goals.

The United States has played a leading role in international efforts to bring to justice those who have committed war crimes and other violations of international humanitarian law. In his remarks on October 15, 1995, commemorating the 50th anniversary of the Nuremberg Tribunals, President Clinton declared: "We have an obligation to carry forward the lessons of Nuremberg." The President stressed the need to "put into practice the principle that those who violated universal human rights must be called to account for those actions." This is one of the reasons why the United States has so strongly supported the establishment and the work of the United Nations War Crimes Tribunal for the former Yugoslavia and for Rwanda. As President Clinton said with regard to persons indicted by those Tribunals:

Those accused of war crimes, crimes against humanity and genocide mast be brought to justice. They must be tried and, if found guilty, they must be held accountable.

The Congress acted in support of this objective earlier this year by its adoption of Section 1342 of the National Defense Authorization Act, Fiscal Year 1996, which authorized the surrender to the War Crimes Tribunals of persons found in the United States who had been indicted or convicted for offenses within the jurisdiction of those Tribunals.

Although the United States led the effort to create the War Crimes Tribunals for the former Yugoslavia and for Rwanda, we do not believe that the prosecution of war crimes can be left to international tribunals alone. The mandate of these tribunals is limited to particular conflicts, and as a practical matter these tribunals will not have the ability to deal with most offenders even in those cases. More fundamentally, international law imposes an obligation on individual states to take various measures to prevent and punish the commission of war crimes.

Making such acts criminal under domestic law is essential to deterring them. When such acts do occur, prosecuting those who commit them is essential in helping to prevent their recurrence. If we are to ensure that those who commit war crimes are brought to justice, we must rely first and foremost on the domestic criminal laws and practice of individual states.

Indeed, international law expressly requires states to enact penal legislation, where necessary, to provide for the punishment of those who commit certain war crimes. Parties to the Geneva Conventions of August 12, 1949, relating to the laws of warfare ("the 1949 Geneva Conventions") are required to "enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches" defined in those Conventions. Grave breaches include, among other things, acts such as willful killing, torture or inhuman treatment, and willfully causing great suffering or serious injury to body or health, when committed against sick or wounded combatants, prisoners of war, or civilians.

At the time of the submission of the 1949 Geneva Conventions to the Senate for advice and consent, the Executive Branch advised that implementing legislation was not required, since offenders could be prosecuted under federal and state penal statutes (in the case of crimes within United States jurisdiction) or the Uniform Code of Military Justice (with respect to crimes committed abroad). However, over the years, U.S. courts have handed down a series of decisions which cast doubt on the constitutionality of the exercise by military tribunals of criminal jurisdiction over the acts abroad of various categories of persons who are not in active military service.

It is therefore very useful, in our view, to establish clear jurisdiction in U. S. courts to try any persons for such offenses if they come within U.S. jurisdiction. Furthermore, since 1949 the United States has accepted certain specialized rules of international humanitarian law which may not have an equivalent in existing U.S. criminal statutes.

As currently drafted, H.R. 2587 would create new provisions in title 18 of the U.S. Code that would make it a criminal offense, prosecutable in U.S. courts, for any per-son to commit a grave breach of the 1949 Geneva Conventions, or any. protocol thereto to which the United States is a party, against a citizen of the United States or a member of the armed forces of the United States. Although we of course hope that such acts are never committed against our nationals or armed forces personnel, experience has taught us otherwise, and the Department of State certainly supports the enactment of criminal legislation, to deal with cases where our nationals or armed forces personnel are the victims of grave breaches of the 1949 Geneva Conventions.

If, however, we are to achieve the objectives to which I have referred, H.R. 2587 should be expanded in several important respects. First, it should be amended to expand the circumstances under which the commission of the crimes in question would be subject to the criminal jurisdiction of U.S. courts.

Specifically, the provision should apply not only where offenses are committed against a U.S. national or member of the U.S. armed forces, but also where offenses are committed by such persons. While we are certainly interested in bringing to justice those who commit war crimes against our nationals or armed service personnel, we also have an interest in punishing any U.S. national or armed service member who commits such acts.

Further, H.R. 2587 should be expanded to provide criminal jurisdiction whenever the offense is committed in the United States, or where the perpetrator of an offense is later found in the United States regardless of where or against whom it was committed. This would ensure the ability of the United States to fulfill our obligations under the 1949 Geneva Conventions and other international agreements. It will ensure that the United States cannot be a safe haven for those who have committed violations of the laws of war.

Second, the Administration supports expanding the types of violations of international humanitarian law to be addressed by H.R. 2587. We suggest that the provision cover not only grave breathes of the 1949 Geneva Conventions, but a more general category of "war crimes" that would be defined to include certain violations of the laws of war in addition to grave breathes.

Specifically, we believe H.R. 2587 should make it a crime under U.S. law to commit violations of the rules specified in Common Article 3 and Additional Protocol II to the 1949 Geneva Conventions that apply during non-international armed conflict, that is, civil wars and other internal conflicts. As the grim experience in Rwanda reminds us, some of the most horrible war crimes occur in internal armed conflicts, as to which the grave breach provisions of the 1949 Geneva Conventions may not be applicable.

For example Common Article 3 of the Geneva Convention prohibits murder, cruel treatment, and torture of persons, such, as civilians or captured or wounded combatants, taking no active part in hostilities during a non-international armed conflict. As evidence of the importance of the protections of international law in non-international armed conflicts, the United States has taken the position that the Statute of International Criminal Tribunal for the Former Yugoslavia, which gives the Tribunal jurisdiction over "persons violating the laws or customs of war," includes violations of Common Article 3 and the additional protocols to the Geneva Conventions. We believe that such violations should similarly be treated as war crimes for purposes of U.S. law, and thus should be covered by an expanded H.R. 2587.

Further, H.R. 2587 should be expanded to cover violations of Articles 23, 25, 27, and 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, of October 18, 1907, applicable to international armed conflict. The 1907 Hague Convention is an important source of international humanitarian law, and it served as an important basis of law for the Nuremberg Tribunal.

Article 23 of the Convention lists a series of acts prohibited in war, including, among other things, using poison weapons, killing individuals who have laid clown their arms and surrendered, and employing arms calculated to cause unnecessary suffering. Article 25 prohibits the bombardment of undefended towns, villages, dwellings, or buildings. Article 27 requires forces to take steps to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where they sick and wounded. are collected, provided they are not being used at the time for military purposes. Article 28 prohibits pillage. Provisions such as these have provided the basis for Article 8 of the Statute of International Criminal 'Tribunal for the Former Yugoslavia, which gives the Tribunal jurisdiction over "persons violating the laws or customs of war."

The Administration believes such violations should also be treated as war crimes in H .R. 2587.

Finally, the United States has recently participated in the successful negotiation of an amendment to Protocol II (on land mines) to the Convention on Conventional Weapons, to which the United States is a Party. The amended Protocol, which will soon be submitted to the Senate for its advice and consent, will require the imposition of penal sanctions against persons who, in relation to armed conflict and contrary to the provisions of the Protocol, willfully kill or cause serious injury to civilians.

The United States should take care now, in H.R. 2687, to provide for making such offenses criminal under U.S. law when the amended Protocol comes into force for the United States. (We fully expect favorable Senate consideration, and hopefully entry into force, next year.) Doing so would ensure, for example, that deliberate, in- discriminate use of anti-personnel mines to harm civilians would constitute an offense under U.S. law. This objective is entirely consistent with Congressional sentiments and Administration policy on ending the humanitarian crisis posed by these weapons.

Expanding U.S. criminal jurisdiction over war crimes will serve not only the purpose of ensuring that the United States is able to comply fully with its obligations under international Iaw, but will also serve as a diplomatic tool in urging other countries to do the same. Currently the U.S. Government's leverage in calling on other governments to enforce the laws of armed conflict is restricted because of the limitations I have noted concerning our own domestic enforcement jurisdiction. H.R. 2587, if amended in the manner we propose, would remedy this defect concerning US, enforcement of the laws of armed conflict, particularly with respect to persons who commit such crimes outside the United States but who enter U.S. territory. With this bill, if modified as we suggest, we will set the right example and use it to persuade other governments to abide by and enforce the laws of armed conflict.

Mr. Chairman, this concludes my prepared testimony. I have also submitted for the record the Administration's proposed revision of H.R. 2587 to expand the bill in the manner I have described. I thank you for the opportunity to appear before you and would be happy to answer any questions.

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